Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Ct.No. RIF127215. Elisabeth Sichel, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant, Tyree Lavelle Coutee.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant, Derrick Joseph Yanders.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendants and appellants Tyree Lavelle Coutee and Derrick Joseph Yanders appeal their conviction of one count of robbery and one count of assault with a deadly weapon, with attendant enhancements. Defendant Coutee contends that the court erred in admitting certain evidence. Defendant Yanders argues that the court’s failure to “preinstruct” on the issue of reasonable doubt was error. Both defendants argue that the evidence was insufficient to support a street gang enhancement.
FACTS AND PROCEDURAL HISTORY
On October 21, 2005, Randy Johnson persuaded his friend, Terence Ratcliffe, to accompany him to a party. Ratcliffe dressed for the party in new clothes, a shirt, pants, shoes, and a jacket, which he had purchased that day. He also wore two gold chains. Johnson and Ratcliffe left Ratcliffe’s house at approximately 10:00 p.m. to walk to the party a few blocks away. As they neared their destination, however, Johnson told Ratcliffe there was no party. Johnson started laughing. Ratcliffe, upset, asked Johnson why he had brought him there. Johnson responded that he was “just playing” around.
Ratcliffe turned around and began walking home. Johnson followed him. As the two men walked toward Ratcliffe’s house, Johnson received a call on his cellular telephone. He told Ratcliffe that the call was from a girl. Ratcliffe could not hear who Johnson was talking to, but he heard Johnson describing Ratcliffe to the caller, giving details of what Ratcliffe was wearing. A block away from Ratcliffe’s house, Johnson ended the call.
Within minutes, two men with guns ran up, yelling, “We’re robbing you, m----- f-----, we’re robbing you.” The taller of the two robbers ran toward Johnson; the shorter robber confronted Ratcliffe. The shorter man had a semiautomatic weapon. He immediately reached under Ratcliffe’s jacket and snatched the gold chains from Ratcliffe’s neck. The jacket had obscured the chains from view; Johnson was the only person who knew Ratcliffe was wearing them. The shorter man frisked Ratcliffe, taking his cellular telephones from his pocket. At the same time, he ordered Ratcliffe to take off his clothes. When Ratcliffe demurred, the taller man ran over. He pointed his silver revolver at Ratcliffe and threatened to shoot him if he did not obey. Ratcliffe then complied; the two robbers took all of his belongings and ran away.
Ratcliffe ran to his home a short distance away. Johnson was already in Ratcliffe’s yard when Ratcliffe arrived. Johnson laughed and said that the robbers had only taken his cellular telephone. Ratcliffe called police. When the police arrived, he gave them descriptions of the two robbers.
A day or so later, Ratcliffe gave more information to police. Ratcliffe recognized the shorter man, defendant Coutee, from a gang fight that had taken place at his high school two years earlier. Ratcliffe told police that Coutee was a member of the “Big Johnson Crew,” a street gang. Approximately a month after the robbery, Ratcliffe happened to spot defendant Coutee in a shopping center. Ratcliffe withdrew to an observation point and called police. Police arrived and arrested defendant Coutee. Police officers at the station remembered having field contacts with defendant Coutee and recalled seeing Coutee in the company of defendant Yanders. Police prepared a photographic lineup, which included defendant Yanders’s picture. Ratcliffe identified Yanders’s picture as the taller of the two robbers.
The Riverside County District Attorney charged defendants Coutee and Yanders each with one count of robbery (Pen. Code, § 211) (count 1) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)) (count 2). Count 3 charged defendant Coutee with active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and count 4 charged him with carrying a loaded firearm while an active participant in a criminal street gang (Pen. Code, § 12031, subd. (a)(2)(C)). As to counts 1 and 2, the information alleged that the crimes were committed to benefit a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), and as to count 1, it was alleged that defendants each personally used a firearm in the commission of the crime (Pen. Code, § 12022.53, subd. (b)).
A jury convicted defendants on all counts pertaining to each, respectively, and found the attendant enhancement allegations true. The court sentenced defendant Coutee to the middle term of three years on count 1, plus two consecutive 10-year enhancements for the firearm use and gang enhancements. The court stayed sentence on counts 2 through 4, and related enhancements. The court sentenced defendant Yanders to a term of two years for the robbery, plus 10 years each for the gang and gun use enhancements. The court stayed the sentence on count 2.
Each defendant filed a notice of appeal.
ANALYSIS
I. Defendant Coutee’s Appeal
A. The Trial Court Properly Admitted Evidence of a Gun Found After the Robbery
Approximately a month after the robberies, local police officers were patrolling near a market known as a gang hangout. They parked their police car in the lot at the market. The officers saw defendant Coutee come outside. As soon as he saw the officers, defendant Coutee turned around and reentered the market. A few minutes later, defendant Coutee came outside, and walked around the corner of the building. The officers went to the area where they had last seen defendant.
As they returned to their patrol car, the officers saw defendant walk along the street and turn into an alley. They followed in their car, stopped in the alley, and hailed defendant. Defendant Coutee immediately ran away through an apartment complex. The officers gave chase and arrested defendant. After arresting defendant, the officers returned to the rear of the market, where they found a loaded black semiautomatic handgun, covered by a piece of paper. The gun and paper were not dirty, and appeared to have been recently placed where they were found. No fingerprints were found on the gun.
Defendant Coutee moved before trial to exclude any evidence of this incident. Defense counsel argued that the evidence was not relevant because when Ratcliffe initially contacted police, he described the gun held by the shorter robber as a chrome revolver, not a black semiautomatic handgun. Defense counsel also moved to exclude the evidence as more prejudicial than probative and confusing to the jury. (Evid. Code, § 352.)
The trial court denied the motion to exclude the evidence, finding it more probative than prejudicial.
1. Standard of Review
Despite defendant Coutee’s casting of his contention in constitutional terms, the gist of his claim of error is the erroneous admission of evidence. The decision whether any proffered evidence “is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court.” (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.) “ ‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (Id. at p. 225.) It is the defendant’s affirmative burden to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
2. Defendant Has Shown No Abuse of Discretion in the Admission of the Evidence
Defendant’s claim of error hinges on the circumstance that, when Ratcliffe reported the robbery, he purportedly told the interviewing officer that “the shorter [robber] had the chrome revolver.” Defendant argues that the gun found behind the market was not relevant, because it “did not even fit the description of the gun purportedly used by the ‘short robber’ on the date of the offense.”
Defendant is mistaken. Although defense counsel made an offer of proof that the victim reportedly on one occasion described the shorter robber as having the chrome gun, at trial Ratcliffe consistently testified that the shorter robber—defendant Coutee—had the black gun. Deputy Robinson responded to the robbery call. He testified about Ratcliffe’s description of the robbers and the guns. According to Deputy Robinson’s report, Ratcliffe had described the five-foot six-inch robber as having “a shiny revolver, I think.” The second (presumably, the taller) suspect was described as having “just an unknown type of a shiny pistol or something like that is what he said.” Deputy Robinson also acknowledged, however, that Ratcliffe had described the shorter robber, to the forensic sketch artist, as having a black, semiautomatic handgun. The “wanted” posters for the two robbers, created from the forensic artist’s interview with Ratcliffe, identified the shorter robber—defendant Coutee—as having the black gun.
Whether Ratcliffe made an error in one of his statements to police, or whether, as his own testimony suggested, the interviewing officer mistakenly recorded Ratcliffe’s description of the gun, the victim’s trial testimony was always consistent that defendant Coutee had the black gun. The gun found behind the market (a black gun) therefore, did “fit the description of the gun purportedly used by the ‘short robber’ on the date of the offense.”
Contrary to defendant Coutee’s arguments, the gun was not admitted under Evidence Code section 1101, simply as “propensity” evidence. The evidence was admitted as circumstantial evidence to show that it was the gun defendant Coutee used during the robbery, and also for the purpose of proving defendant Coutee’s active membership in a gang. The court instructed the jury that the evidence that defendant Coutee had possessed a loaded gun on November 9, 2005, could be used only for “the limited purpose of determining whether it tend[ed] to show,” (1) that it was the same gun defendant Coutee had used in the robbery, or (2) to show the truth of the gang allegations. The court also instructed the jury not to consider that evidence unless the jurors believed it to be true (i.e., that defendant Coutee in fact did possess the gun found on November 9, 2005). Manifestly, the evidence was not admitted simply to show defendant Coutee’s propensity to commit crimes.
The court carefully exercised its discretion under Evidence Code section 352, weighing and balancing the probative versus the prejudicial value of the evidence, and its potential for confusion. The court gave limiting instructions designed to eliminate any confusion or undue prejudice.
Defendant Coutee’s reliance on People v. Archer (2000) 82 Cal.App.4th 1380 is misplaced. There, the court held inadmissible several knives that had no possible connection to the commission of the crime. Although it is true that “ ‘[e]vidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons—a fact of no relevant consequence to determination of the guilt or innocence of the defendant’ ” (id. at pp. 1392-1393), the Archer court’s pronouncement recognizes the converse; that evidence of possession of a weapon which was, or may have been, used in the commission of a crime does not constitute improper propensity evidence.
The court did not abuse its discretion in admitting evidence of the gun found behind the market.
B. The Evidence Was Sufficient to Support the Gang Findings
Defendant Coutee next contends that the evidence was insufficient to support the jury’s finding that he committed the robbery for the benefit of a criminal street gang.
1. Standard of Review
“ ‘The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.’ ” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) As the People note, “ ‘[R]eversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding.’ ” (People v. Gray (1998) 66 Cal.App.4th 973, 984.)
2. The Evidence Was Sufficient to Support the Gang Enhancement Finding
Penal Code section 186.22, subdivision (b)(1), provides for a mandatory sentence enhancement whenever a defendant is “convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
Defendant Coutee does not argue that the Big Johnson Crew (BJC) was not a criminal street gang. Likewise, he does not contend that he was not an active member of the BJC gang. Rather, he contends that the evidence was insufficient on the issues of specific intent to promote, benefit or assist criminal conduct by gang members, and the commission of the crimes for the benefit of, at the direction of, or in association with a criminal street gang.
Contrary to defendant’s contention, the evidence was sufficient. The People proffered the testimony of gang experts that, when gang members work together in committing crimes, the crimes benefit a gang because the perpetrators are acting together. By working together, the gang shows that it will not back down, and will take matters as far as possible. Committing a robbery and assault and possessing a gun would benefit the gang members by increasing their reputation within the gang and by serving notice to members of rival gangs and to members of the general public that the gang is asserting collective dominion over its territory. Use of firearms to commit crimes engenders fear in the community and solidifies the gang’s reputation for violence: i.e., its willingness to use guns.
The evidence at trial showed that defendant Coutee is an admitted BJC member. Defendant Yanders is a known associate of the gang. The crimes were committed by both gang affiliates working in concert. Each defendant had the specific intent to assist criminal conduct committed by the other, a gang member or associate. They approached the victim together, and they acted jointly to gain Ratcliffe’s compliance with their demands for his belongings.
Gang members need not shout gang slogans or flash gang signs to act for the benefit of, at the direction of, or in association with a gang. (See, e.g., People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) In People v. Ferraez (2003) 112 Cal.App.4th 925, the defendant was found outside a swap mall with cocaine in his pocket. Even though the defendant specifically denied any intent to sell drugs for a gang, claiming he was selling drugs for the sole personal purpose of raising money to buy a car, the circumstantial evidence provided by the testimony of a gang expert was sufficient to support a true finding of the gang enhancement. (Id. at pp. 930-931.)
C. Joinder
Each defendant has joined in the issues raised by the other, to the extent applicable. The issue of the admissibility of the gun evidence as to defendant Coutee is inapplicable to defendant Yanders. Each defendant independently raises the issue of sufficiency of the evidence to support the gang enhancement. To the extent defendant Coutee joins in defendant Yanders’s complaint about the jury instructions, our analysis below is sufficient to dispose of that claim.
II. Defendant Yanders’s Appeal
A. The Court Properly Instructed the Jury on the Presumption of Innocence and the Burden of Proof
Defendant Yanders points to Penal Code section 1122, subdivision (a), which provides in part: “After the jury has been sworn and before the people’s opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct.” (Italics added.) Defendant Yanders, seizing upon the italicized portion, complains that the trial court failed to preinstruct the jury on what he claims is one of the jury’s most basic duties—to maintain the presumption of innocence.
Defendant Yanders has ripped this statutory provision from the remainder of its context. The balance of Penal Code section 1122, subdivision (a), reads: “The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury.”
Moreover, defendant Yanders acknowledges, as he must, that the court has a wide discretion in determining the timing of jury instructions (People v. Chung (1997) 57 Cal.App.4th 755, 758), and that the trial court did give a pretrial instruction to the jury to make no inference as to the defendants’ guilt from their having been arrested and charged with the offenses being tried.
Penal Code section 1122 imposes no state statutory duty to preinstruct the jury on the burden of proof. Far less is there a constitutionally compelled duty to preinstruct the jury on the concepts of reasonable doubt, burden of proof and presumption of innocence. In any case, the trial court did fully and properly instruct the jury on the required and relevant constitutional principles in its charge before deliberations. Defendant has shown neither constitutional nor statutory error and no ground for reversal of the judgment.
B. Evidence of Gang Enhancement Was Sufficient
Defendant Yanders raises the same issue as defendant Coutee with respect to the sufficiency of the evidence to support the true finding of the gang enhancement. Our analysis of the issue as to defendant Coutee also disposes of the issue as to defendant Yanders.
DISPOSITION
The judgment as to each defendant is affirmed.
We concur: RAMIREZ P. J., RICHLI J.